11
[Extract from Queensland Government Industrial Gazette,
dated 27 January 2006, Vol. 181, No. 4, page 107-115]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 74 - application for reinstatement
Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (for Jeanette James)
AND Cal-Mac Pty Ltd t/a Calamvale Hotel (B/2005/1084)
COMMISSIONER THOMPSON / 12 January 2006Application for reinstatement - Witness evidence - Termination warranted - Process flawed - Minimal compensation awarded.
DECISION
Background
An application for reinstatement was filed by the Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (the Union) on behalf of Ms Jeanette James (the applicant) on 26 July 2005.
It was alleged that Ms James, a retail attendant from January 2003 until her dismissal on 2 July 2005, was dismissed for reasons relating to breaches of staff rules.
The respondent was named as Cal-Mac Pty Ltd t/a Calamvale Hotel (the respondent).
Applicant
The case for the applicant relied upon evidence given in the proceedings by Mr Kieran Crabbe and Ms James.
Crabbe
As a former employee of the respondent, Mr Crabbe, from January 2003 until 1 July 2005, supervised Ms James in her position whilst in the employ of the respondent.
Some six weeks (at least) prior to his resignation, he gave evidence of a Cinzano Alcohol promotion beginning, in which a complimentary Cinzano glass was attached to each bottle to be sold.
He recalled not long after (date unknown) that he served a customer who did not want the two glasses which he then removed and put to one side.
Ms James had asked him if she could keep the glasses, to which he responded that she would have to wait until the promotion was over whereby she could take the remaining glasses home.
Justification for allowing Ms James to take the glasses was based upon her working overtime, covering extra shifts, and responsibilities such as ordering whilst the manager was on leave.
At paragraph 13 of his affidavit, he stated:
"This is something done regularly in all McGuire's barns as a pat on the back for staff who have been performing well or doing that little extra, which I felt Jeanette had been doing.".
On commencement of employment with the respondent, he was told by management that he had permission to give employees left over promotional material and this was a discretion that he said had not been withdrawn.
He recalled attending a meeting shortly before he resigned where the issue of promotional material was discussed due to concerns that management had about a staff member taking home a "large promotional item".
At the time, he gave Ms James permission to take the glasses home, there was no directive from management preventing him from doing so.
The Cinzano promotion was of the type that ended when the stock had run through.
He was not present on 30 June 2005 when Ms James took the glasses home.
Whilst he did not, at any time, witness Ms James and Mr Colin Pascoe interacting, Ms James had mentioned to him that, in his absence, she had been harassed by Mr Pascoe.
He gave evidence of a discussion with Mr Damien McGuire some time after he had left the respondent and Mr McGuire, being unhappy with him supporting Ms James by way of writing a letter tendered at the conciliation conference.
Ms James had always been a hard worker who had conducted herself with honesty at all times.
Cross-examination of Mr Crabbe included:
· Permission for Ms James to take two Cinzano glasses
· Managers' meeting where the issue of promotional material was discussed in February 2005
· Wording on notices placed in the workplace (page 26, line 18 of transcript):
"Moore: Sure and so, you'd accept that the two notices that you viewed as CFB5 and 6 were posted in that area of the hotel?
Crabbe: Yes.
Moore: And that the wording is quite clear there that, taking promotional material is considered theft and will result in instant dismissal?
Crabbe: Yes.".
· Alleged harassment of Ms James by Mr Pascoe.
James
Ms James gave evidence relating to her employment status as a casual Food and Beverage Attendant Level 2, regularly working between 40 and 45 hours per week.
In general, her work was under the direction of Mr Crabbe, however, in his absence, the second-in-charge, Mr Noel Steel, would give her directions.
Sometime around the early part of 2005, according to the witness, Mr Pascoe overly scrutinised her work when Mr Crabbe was absent from the Hotel, and would take every opportunity to harass her over trivial things such as car parking and her till setup.
She had a number of interactions with Mr Pascoe over the layout of her till, with such discussions becoming heated at times.
In relation to the Cinzano promotion, whilst not recalling the exact date, she witnessed Mr Crabbe cut the cellophane off the bottles and set the glasses aside.
She had asked Mr Crabbe for permission to take the glasses home, which was refused on the basis that when the promotion finished, if there were glasses left over, she could have some.
From her commencement with the respondent, she had been allowed to take numerous "promos" home and had witnessed other staff doing the same.
She acknowledged that some time during her employment, she was given a copy of the "Calamvale Tavern Staff Rules" which, at Rule 4 stated that "an employee found taking hotel property, which includes promotional gear, will be dismissed".
In her time at the Hotel, there had not been enforcement of the rule and she, along with other staff, thought that Managers had the authority to override the rule.
On 30 June 2005, during the course of a shift, she realised that the Cinzano promotion was over as supplies had arrived without glasses attached to them.
In remembering her conversation with Mr Crabbe about the glasses, she wrapped the glasses in newspaper and put them in a box on a shelf at the back of the drive-through.
Later that evening, she served a male customer who purchased a four pack of Jack Daniels cans which cost $17.99.
She denied undercharging the customer, stating that she took $18.00 as payment.
The customer had a young child with him who wanted a drink which was selected and paid for by the man.
She has subsequently had the opportunity to look at surveillance footage of the incident which, in her view, confirms that the customer handed over three $5 notes and some coins.
At the conclusion of her shift, she took a number of empty boxes to her car (as she was moving house at the weekend) as well as the box containing the glasses.
She worked the next two days without anyone mentioning her removing the glasses from site.
At the end of her shift on 2 July 2005, she was asked to attend a meeting with Mr Pascoe, at which Ms Frances Murray, the functions manager, was present.
Mr Pascoe made allegations that she had given a customer discount (the customer referred to earlier in the decision) and that the child with him was her granddaughter.
Having denied the allegations, she was then asked about glasses she had taken.
She responded by indicating she had taken the Cinzano glasses and that Mr Crabbe had given her permission.
When confronted by Mr Pascoe saying words to the effect "Kieran [Crabbe] was not here on Thursday - who did you ask?", she replied "no one" as "Kieran had previously given permission to take those glasses".
The permission from Mr Crabbe had been given a few months beforehand.
The conversation went around in circles for some time, with her eventually saying to Mr Pascoe "Listen Col, you do what you've got to do".
Mr Pascoe replied "I'm going to have to let you go", to which she replied "whatever" and then walked out.
Since her termination, she had been unemployed for 10 weeks and had been under enormous financial pressures and stress.
She attached to her affidavit at "JMJ 1" a copy of the Calamvale Hotel Staff Rules which, at rule 4 stated:
"Any staff member found taking any Hotel property, which includes promotional gear, will be dismissed.".
Under cross-examination, questions put to the witness included:
· Number of Cinzano glasses taken by the witness (page 40, line 46 of transcript):
"Moore: Thank you, Commissioner. Ms Jones, if I could start by asking you how many Cinzano glasses you say it is that you took home with you on the 30th June? Four? . . .
James: Yes.".
· Previously taking items of a promotional nature
· Witnesses attendance at a staff meeting on 17 February 2005 (page 48, line 34 of transcript):
"Moore: You - do you recall attending that staff meeting?
James: I was told I had to attend it quite strongly, yes, I do.
Moore: And do you recall whether the issue of promotional material and taking promotional material was discussed at that meeting?
James: What - yeah.
Moore: Yes. What's your recollection of the - when you say, 'It was brought up.' What's your recollection of - of that?
James: I couldn't give you wording exactly that was used but I do know that it was bought up and mentioned about the promotional items being removed.
Moore: And anything further other than promotional items being removed; was there - - ?
James: Like I said, I don't remember exact wording but it would follow all their wording, I dare say.
Moore: As per policy; is that removal of promotional items would lead to termination?
James: Correct.".
· Regular hours of work
· Allegations of harassment by Mr Pascoe.
Respondent
The respondent called evidence from five witnesses, those being: Mr McGuire, Mr Pascoe, Mr Daniel Gardiner, Mr Steel and Ms Murray.
McGuire
Mr McGuire, a long-term employee of the respondent, is currently employed as the operations manager, having held that position since 1999.
His role includes responsibilities for implementing and monitoring compliance with policies and procedures at all of the groups Hotel premises.
There is a clear policy regarding promotional items which was identified in the McGuire's Calamvale Hotel Conditions of Employment "DJM 1" which, under the heading of "Staff Purchases" states:
"All staff purchases must be accompanied by a receipt and any discount given to staff must be authorised by the Manager on duty. Any employee found taking any stock from hotel premises, including any giveaway or promotional material without payment or receipt will be dismissed immediately.".
Attached to his witness statement at "DJM 2" was a "McGuire's Hotel Group Conditions of Employment" document signed by the applicant on 3 February 2004 of which the final paragraph stated:
"I have read and understood the conditions of employment and accept all terms and conditions of employment with the McGuire's Hotel Group.".
On Thursday 10 February 2005, a meeting of the group's managers was held at which Mr Crabbe was in attendance, and where the issue of promotional material was addressed twice.
The following day, a facsimile was sent to hotel managers requiring them to conduct staff meetings on or about 17 February 2005 at which all issues discussed the previous day by managers were to be addressed.
Under the heading of "Information for all hotel staff", the following appeared at page 2:
"Theft is and will not be tolerated. Any staff member found stealing will be dismissed. This includes theft of promotional products, stock or money. The giving away of free drinks is also considered to be theft. Any staff member who is aware of another staff member stealing is to report it to the Hotel manager AWAP. This is an area that will be closely looked at by all management at the Hotel.".
Mr McGuire took issue with the claim of Mr Crabbe on the authorisation of staff to remove promotional material from Hotel premises.
At paragraph 6 of his affidavit, he said:
"To the best of my knowledge this claim by Mr Crabbe is unsubstantiated. It is not, nor has it ever been McGuire's Hotels policy to give away promotional products to staff as a 'pat on the back'.".
Further to Mr Crabbe's claim that he had the "licence" to give employees permission to take promotional material home, he had attended the managers' meeting in February 2005 where he (and other managers) were clearly advised that the taking of promotional stock would be considered theft and would result in termination.
In concluding his evidence, the witness challenged some key sections of the evidence given in the proceedings by Mr Crabbe.
In the cross-examination process, questions were put in respect of matters that included:
· Structure of the business
· Policies and procedures
· Witness having approved staff taking promotional items home
· Value of the glasses taken by Ms James
· Understanding by staff on taking promotional stock (page 70, line 55 of transcript):
"Virine: Okay. Do you think that there would have been a feeling amongst the staff that it was okay to take home promotional stock if a manager had told them that it was okay to do so?
McGuire: I'm quite sure there wouldn't be, because the managers have been told they can't and the staff have been told they can't.
Virine: But if a manager told a staff member that it was okay to do something, do you think it's reasonable for the staff member to think that they had been given permission?
McGuire: Not after going to that staff meeting at the Calamvale Hotel, which is how we found out from another staff member who also believes it's unreasonable for someone to be taken it home.".